Montgomery v. Hunt

99 Ga. 499 | Ga. | 1896

Atkinson, Justice.

Tbe material facts upon wbicb tbe questions made under tbe present writ of error arise were stated when this case was last before this court. (See 93 Ga. 438.) It is therefore unnecessary to restate them here. Those portions of the record, the consideration of which is necessary, will be • found stated in the official report.

1. In the case cited above, it was held that the note sued upon should be construed in connection with the writteu agreement executed contemporaneously with that note. The agreement referred to in terms states, that the note-sued upon was given to secure the payment of certain commissions which the parties supposed that the maker would be able to earn in carrying out the written contract, the undertaking of the maker of the note being, that in consideration of the rights and privileges granted to him under the contract in question, he would, in the territory specified, use his endeavors to sell the wire fence concerning which the parties were contracting. He agreed to pay “the first party (the payee of the note) five cents per rod of the commission after he has sold one thousand rods of fence and received all the commission, $250.00, as he has this day secured to be paid $125.00 by execution of his note, being one half of the commission on the first 1,000 rods of fence sold. And if 500 rods of fence have not been sold at the end of six months by the second party, then said company or their authorized representatives are fully empowered to cancel said agency and appoint another agent in his stead; but if they decide to cancel said agency, which shall be at their option, they shall surrender said note after first being paid one half the commission on the fence sold during the said six months.” According -to this agreement, it is clear that the note was given merely as collateral security for the payment of the commissions which might be earned by the maker of the note in selling the wire fence under the contract executed contemporaneously with it.

2. One other obligation assumed by the maker of the note was to use his endeavor to sell, 'the fence. This stipulation imposed upon him an active duty in regard to the matter, and it was accordingly incumbent upon him -to use reasonable diligence in endeavoring to effect sales, and if the failure to make them resulted solely from the want of such diligence upon his part, he would, in favor of the adverse party, be chargeable with having earned the commissions, as though the sales which might have been made by him in the exercise of reasonable diligence had actually been made. If he made such effort, however, or was, because of the act of the adverse party, excused from making it, he would not be guilty of negligence, and could not be held answerable for commissions as earned which were not earned.

3. Having assumed the duty of using his endeavor to sell the fence, it was competent upon the trial of the case for the plaintiff to show that the defendant had not complied with this duty, and had made no effort to effect sales, and it was a corresponding right upon the part of the defendant to show that his failure to make sales, or his failure to make an effort to sell resulted from the failure of the payees to comply with their agreement to furnish him samples of the-fence which'he was expected to sell. Two grounds of error assigned in -the motion for new trial will be dealt with in connection with this view of the case. Hpon the trial the defendant, upon cross-examination, testified that he had not,, endeavored to sell any of the fence mentioned in the contract in evidence. His counsel objected to this, upon the ground that it was irrelevant. The objection was overruled, and the evidence admitted, but after admitting the evidence thus objected to, the court ruled out the testimony of the defendant to the effect that when he entered into the-contract with Magee, Fletcher & Co., the payees in the note, they promised to send him, within a few days, samples of the fence with which to try to make sales, and that, the samples had never been furnished to.him, and that he did not attempt to sell any of the fence, because he had no samples, and none had been sent to him. Magee, Fletcher- & Co., the payees in 'the note, agreed with the maker that they would keep on hand a full supply of the Champion Combination. Slat and Wire Fence, -which, -would be furnished at all times to the maker at certain prices. The non-compliance with this agreement upon the part of the payees might have been sufficient, and would by a jury doubtless have been considered sufficient to excuse the maker’s non-performance of his covenant to attempt to sell; and therefore the court, while ruling correctly in admitting the evidence tending to show that the defendant had not attempted to sell, erred in excluding that part of the evidence which was directed to an explanation of his reasons for not making the attempt.

dt, 5. Of course, none of tire defenses - urged by the defendant could avail against the plaintiff, who was an endorsee, if he purchased the note before its maturity bona fide and for value, without knowing anything of the consideration, and without notice of the alleged failure thereof. Whether or not he had notice is a question of fact. Notice may be express, or it may be implied. If before he purchased the paper he had knowledge of such facts in connection with the transaction as would serve to put a prudent man upon inquiry as to the true status of affairs between the original parties, he would be chargeable with notice of every other fact material to be known which he could have -discovered had he prosecuted with reasonable diligence the inquiry thus suggested to him; and if it should be fo-und that he purchased with notice, he would occupy no better position than the payees. We think the court, by its •charge which is stated in the recor’d, misconceived the true meaning of the .contract between the parties, and the true bearing of the written contract upon the promissory note. For this reason, and because of the errors committed in ex-cluding evidence,, a new trial is directed.

Judgment reversed.